# C_2007269EN.01005002.xml

| 10.11.2007 | EN | Official Journal of the European Union | C 269/50 |
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10.11.2007

EN

Official Journal of the European Union

C 269/50

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Action brought on 28 August 2007 — Lufthansa AirPlus Servicekarten v OHMI — Applus Servicios Tecnológicos (A+)

(Case T-321/07)

(2007/C 269/91)

Language in which the application was lodged: English

Parties

Applicant: Lufthansa AirPlus Servicekarten GbmH (Neu Isenburg, Germany) (represented by: G. Würtenberger, T. Wittmann, lawyers)

Applicant:

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Defendant

Other party to the proceedings before the Board of Appeal: Applus Servicios Technologicos, S.L. (formerly Agbar Automotive, S.L.) (Barcelona, Spain)

Other party to the proceedings before the Board of Appeal:

Form of order sought

| — | That the decision of the Second Board of Appeal dated 7 June 2007 in Case R 310/2006-2, pertaining to the opposition based on Community trademark registration No 2 335 693 ‘Airplus International’ against Community trademark application No 2 933 356 ‘A+’ be annulled; |
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That the decision of the Second Board of Appeal dated 7 June 2007 in Case R 310/2006-2, pertaining to the opposition based on Community trademark registration No 2 335 693 ‘Airplus International’ against Community trademark application No 2 933 356 ‘A+’ be annulled;

| — | that the opposition against Community trademark application No 2 933 356 ‘A+’ be granted and application for registration of Community trademark registration No 2 933 356 ‘A+’ be rejected; |
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that the opposition against Community trademark application No 2 933 356 ‘A+’ be granted and application for registration of Community trademark registration No 2 933 356 ‘A+’ be rejected;

| — | that the defendant pays the costs of the proceedings. |
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that the defendant pays the costs of the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: Applus Servicios Technologicos, S.L. (formerly Agbar Automotive, S.L.)

Applicant for the Community trade mark:

Community trade mark concerned: The figurative trade mark ‘A+’ for goods and services in Classes 9, 35, 36, 37, 40, 41 and 42 — application No 2 933 356

Community trade mark concerned:

Proprietor of the mark or sign cited in the opposition proceedings: Lufthansa AirPlus Servicekarten GbmH

Proprietor of the mark or sign cited in the opposition proceedings:

Mark or sign cited: The Community word mark ‘Airplus International’ for goods and services in Classes 9, 35, 36 and 42

Mark or sign cited:

Decision of the Opposition Division: Rejected the opposition

Decision of the Opposition Division:

Decision of the Board of Appeal: Dismissed the appeal

Decision of the Board of Appeal:

Pleas in law: Infringement of Articles 8(1) and 8(5) as well as Articles 73, 74 and 79 of Council Regulation (EC) No 40/94.

Pleas in law:

The applicant claims that the Board failed to evaluate the criteria of identity of goods and services as well as the similarity of the marks and disregarded the reputation enjoyed by the earlier mark. Moreover, the applicant submits that the Board has breached its duty to state the reasons on which its decision was based. Also, according to the applicant, the Board did not restrict itself to the examination of uncontested facts, evidence and arguments put forward by the parties. Furthermore, the applicant contends that its rights of due process were severely impaired by the Office's failure to inform the applicant about the replacement of the trademark's proprietor by another company. Finally, it is submitted that the Board exceeded its powers when taking into account the submissions filed by the trademark proprietor, without justification, beyond the time-limit set by the Office.

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